Judge: Thomas Falls, Case: 20STCV35029, Date: 2023-05-03 Tentative Ruling

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Case Number: 20STCV35029    Hearing Date: May 3, 2023    Dept: O

HEARING DATE:                 Wednesday, May 3, 2023

RE:                                          AHMAD KAHIL, et al. vs AMES CONSTRUCTION (20STCV35029)

______________________________________________________________________________

DEFENDANT SELECT ELECTRIC, INC.'S MOTION TO

COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS,

SET THREE  

Responding Party: Unopposed as of Fri. 4/28 [due 9 court days before hearing (Thurs. 4/20); therefore, any opposition received would be untimely and not considered]

Tentative Ruling

DEFENDANT SELECT ELECTRIC, INC.'S MOTION TO

COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF

DOCUMENTS, SET THREE is GRANTED. Monetary sanctions are imposed in the

reduced amount of $1,298 [see below].

Background

This is a negligence case. Plaintiff AHMAD KAHIL and his spouse INSAF KAHIL (collectively, “Plaintiffs”) allege the following against Defendants AMES CONSTRUCTION; SELECT ELECTRIC; JULIO PENA (collectively, “Defendants”): Plaintiff was acting as a site inspector for the State of California Department of Transportation (“DOT”) when he arrived at a worksite where he was then struck by a copper wire maintained by Defendants.[1]

On September 14, 2020, Plaintiffs filed suit for general negligence.

On August 4, 2021, the parties filed a STIPULATION TO DISMISS CAUSE OF ACTION FOR WILLFUL FAILURE TO WARN, WITHOUT PREJUDICE wherein the parties stipulated to “dismiss from the Complaint the following cause of action: Count 2 – Willful Failure to Warn [Civil Code section 846] of Plaintiffs' First Cause of Action – Premises Liability.”

On November 10, 2021, Complaint-in-Intervenor, STATE COMPENSATION INSURANCE FUND, filed a SECOND AMENDED NOTICE OF LIEN PURSUANT TO LABOR CODE §§ 3850- 3865; REQUEST TO BE PLACED ON PROOF OF SERVICE LIST FOR ALL PLEADINGS AND DISCOVERY.[2]

On August 31, 2022, Plaintiffs a MOTION FOR LEAVE TO AMEND COMPLAINT, which the court granted.

On December 5, 2022, DEFENDANT SELECT ELECTRIC, INC.'S (“Select”) filed the instant MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (“RFPs”), SET THREE (“Motion”).

On January 3, 2023, Plaintiffs filed their first amended complaint (“FAC”).

Legal Standard

Request for Production of Documents 

Code of Civil Procedure section 2031.300 provides, in pertinent part, 

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: 

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). 

. . . 

(b) The party making the demand may move for an order compelling response to the demand. 

(c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. 

(Code Civ. Proc., § 2031.300, subd. (a), (b), (c).)  Pursuant to Code of Civil Procedure section 2031.260, a responding party must serve responses to a propounding party’s request for production within thirty (30) days of service.  (Code Civ. Proc., § 2031.260, subd. (a).) 

Discussion

Select makes the instant motion on the ground that despite serving the subject discovery on Plaintiffs on July 28, 2022, despite numerous communications with Plaintiffs that the responses were not code compliant because the responses merely stated that all responsive documents have previously been produced such that Select could not identify the purportedly responsive documents, and despite an extension for Plaintiffs to produce code compliant responses (e.g., bates number or the date of production, title of the document, and page number of the responsive information), to date,[3] no responses to the RFP have been received.[4]

As explained by Select in its moving paper, to be code-compliant, responses to RFPs must identify the responsive documents. (See Code Civ. Proc. § 2031.280 (a) [“Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond."]) (emphasis added). Accordingly, rather than the responsive party “simply hand[ing] over reams of documents without specifying the specific demands they are responsive to, leaving the requesting party to make the connections,” the Legislature in crafting the new rule regarding the form of responsive document production requires that the responding party to “explicitly tie the documents to the specific demands of the requesting party.” (See Porter Decl., ¶ 10, Ex. G [true and correct copy of SB-370 and the commentary of the California Senate Judiciary Committee related to the 2020 amendment of California Code of Civil Procedure section 2031.280(a)].)

Here, a review of Plaintiffs’ responses to Select’s discovery request indicates that in addition to other objections, Plaintiffs responded to all discovery requests with “[a]ll responsive documents have previously been produced.” (Porter Decl., Ex. B.) But, as explained above, the responses are not code compliant because they do not "explicitly tie the documents to the specific demands of the requesting party,” as the statute demands.

Therefore, as Plaintiffs have failed to produce code compliant responses—which undermines the purpose of the new rule to provide “more streamlined and responsive document production, [even] if at the slight expense of the producing parties,” the court orders that Plaintiffs provide proper responses.

Monetary Sanctions

As for monetary sanctions, though this court generally refrains from imposing them unless absolutely necessary, the court finds sanctions warranted because Select engaged in numerous meet and confer efforts to resolve the matter without court intervention, efforts which were disregarded. Accordingly, absent a written opposition to explain otherwise and/or absent a compelling response in Plaintiffs’ response(s) to Select’s meet and confer efforts, the court does not find that Plaintiffs have acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Therefore, monetary sanctions are mandatory. (See Code Civ. Proc. § 2031.300(c).)

Select’s Counsel states that it seeks $1,628 in attorney fees [calculated as follows: 3.9 writing the Motion, 1.5 hours drafting the anticipated reply, and 2 hours preparing for and attending the motion hearing at $220/hour]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,298.[5]

As for whom sanctions are imposed upon, “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought.” (Code Civ. Proc. § 2023.040) (emphasis added). Here, it is ambiguous whether Select seeks to impose monetary sanctions upon one Plaintiff, both Plaintiffs, and/or Plaintiffs’ counsel. The court will request clarification on this issue so that the Minute Order on the final ruling will accurately reflect who is to pay for the monetary sanctions.

Conclusion

Based on the foregoing, the motion is granted, as are monetary sanctions against Plaintiff and/or his attorneys of record. Monetary sanctions are payable within 20 days of the hearing.